Scott Fawell: When do prosecutors cross the line?

Editor's note: Long Grove resident and DuPage County native Scott Fawell recently completed a 6½-year federal prison term for racketeering. He testified against his boss, former GOP Gov. George Ryan, after federal prosecutors said that would help lighten his girlfriend's sentence in a related bid-rigging case. Fawell, Ryan's chief of staff, submitted this edited column Tuesday.

Last week we saw a tragic end to the life of Chris Kelly. While I didn't know the man, and I won't pretend to know all the problems he faced, I certainly do understand the pressure our government, and specifically, the U.S. attorney's office put on him to testify in the upcoming (Rod) Blagojevich trial. No one can understand that better than I. Many of you reading this have little or no compassion for Chris Kelly or me. Many - and maybe most - of you believe that we got what we deserved and that whatever tactics the U.S. attorney's office used is OK with you. To all of you, I can only offer the hope that neither you nor your loved ones are ever on the receiving end of what both Chris Kelly and I had to endure.

What I hope for is that Chris Kelly's tragic death opens up a serious dialogue on the delicate topics of prosecutorial tactics and prosecutorial misconduct; whether the prosecutors' actions fall within the principles of fairness and justice that all citizens should rightly expect from their government. Whether their actions of intimidation, fear and threats is an appropriate way of getting people to cooperate, or whether it's just an outright bullying tactic that brings to mind the government's overzealousness and abuse of power we've seen in Guantanamo and elsewhere. While I want to be clear that the actions taken by the prosecutors pale in comparison to the actions taken against the prisoners in Guantanamo Bay, there are some subtle similarities that go to the heart of the matter. Even former prosecutor Pat Collins stated in a recent article that "inappropriate pressure tactics can lead to lying and unjust results," and that "justice can be skewed if inappropriate pressure is brought to bear." So why do prosecutors use multiple indictments and other such extreme tactics as pressure?

The government's first line of defense for their pressure tactics is always, "if we didn't pressure people, we'd never get to the top," which, in the case of Mr. Kelly and I, would be Governors Blagojevich and Ryan. Is that true? Well, not in either of our cases. You see, both men had already been indicted without any assistance from either of us. Since the government had already secured indictments against both men, shouldn't we assume they already had enough evidence to convict them? Then why not just go to trial with the evidence used to indict? Wouldn't they convict with the evidence they used to indict? The witnesses they used to indict? In former Governor Blagojevich's case, is the cooperation and testimony of chief of staff John Harris, advisers and fundraisers Tony Rezko, John Wyma, Lon Monk and other "key insiders" not enough? Was Chris Kelly's - or myself in the Ryan case - testimony a must in order to convict Blagojevich? If you believe that, then you must now believe Blagojevich will win his acquittal, and I don't believe many reading this think that is true.

Then why did the government indict me twice, my fiancee twice and Chris Kelly three times? Why? Because we had the audacity to say no when the government asked for our cooperation. It is not that they really needed us as they would tell you, to "get to the top"; they'd already gotten there. No, it's strictly retribution for saying no. In Guantanamo we mentally abuse - and worse - those who won't cooperate with the U.S. government. Besides a handful of Dick Cheney loyalists, haven't the majority of citizens decided that we, as a people and a freedom-loving country, should never use fear and intimidation tactics to get people to talk? Shouldn't we hold to those same values when it comes to our own citizens in our judicial system? Whether they are suspected terrorists, or Chris Kelly and I as convicted felons, isn't there a still a fundamental right way and a wrong way as to how our government should act?

I read with great interest recent statements by the aforementioned former federal prosecutor Collins. Mr. Collins recently asked a very important question that both he and I agree we all need to ask ourselves. In this country, and within the boundaries of justice, "Are there lines the government should not cross to try to 'flip' a defendant, even in a case against the governor? Of course." While Mr. Collins asked this very important question and answered, "Of course," I admit I was disappointed that he didn't spell out exactly where he believes that "line" is. Having been a prosecutor in high-profile political trials who certainly used pressure tactics in order to prevail in getting individuals to cooperate, he certainly must have an opinion. An opinion that would be helpful in furthering this debate. What criteria did he use when determining the fairness of using specific pressure tactics? Did he ever stop himself, or did others stop him from using tactics that even they felt were too severe? Is there a checks-and-balances or review process within the U.S. attorney's office that reviews what are "approved" pressure tactics and what are not? Or is it left to individual prosecutors to morally decide their own "right or wrong" when it comes to the use of pressure tactics? While I applaud Mr. Collins for bringing up the fact that there can be abuses in the system, it's unfortunate it took a tragic death to get him and others to finally, publicly, address the question of if or when government pressure might be unjust.

The bottom line is I - or Chris Kelly or any American citizen - should be allowed the freedom to say to the U.S. attorney, "No, I don't choose to testify." But that isn't allowed in the Northern Illinois District. With "no," you "earn" the full wrath of the U.S. government in all its anger and unlimited power, until they break you mentally, emotionally and financially. While I didn't make the same decision as Chris Kelly, I certainly can understand the relentless pressures the prosecutors brought upon him. Pressures that surely played a role in his feelings of isolation and hopelessness that ultimately led to his decision to take his own life. Rest assured Chris Kelly will not be the last individual treated to the harsh tactics the government has and will continue to use to get their way. It will continue unchecked unless people start to ask some serious and sometimes uncomfortable questions. Questions that must be asked if we ever wish to stop our government and its prosecutors from acting like a spoiled and all-powerful bully. Even after all I went through, I still love this country. I still believe we have a good and compassionate government that in this case - like we all saw in Guantanamo - has lost its way a bit. We can't turn our backs on abuses of power or we'll get what we deserve. I hope Chris Kelly's death gives us all a chance ... a chance for people - and the media - to take a closer look at just how our government truly operates. And more importantly, to let those in power know that abuses of power of any kind on anyone won't be tolerated.

For Chris Kelly, it may be too late. May God rest his soul.

Scott R. Fawell

Long Grove